IN THE COURT OF APPEALS
STATE OF GEORGIA
|Marquitta L. Portman,||*|
|The Honorable GEORGE H. KREEGER,||*|
|The Hon. ROBERT E. FLOURNOY, Jr.,||*|
|The Honorable DOROTHY ROBINSON,||*||Court of Appeals|
|The Honorable S. LARK INGRAM,||*||FILE NO.|
|The Honorable JAMES G. BODIFORD,||*|
|The Honorable MICHAEL STODDARD,||*|
|JAY STEPHENSON, Clerk of Cobb County Superior Court,||*||__________________|
|LARRY W. YARBROUGH, Attorney at Law,||*|
|DARYL KIDD, Attorney at Law,||*|
|GREGORY RUSSELL PORTMAN, and||*|
|R. WYNETTE KENNEDY PORTMAN,||*|
Application for Interlocutory Appeal and
Brief in Support of Same
COMES NOW, Marquitta L. Portman, Appellant in the above styled Application for Interlocutory Appeal of Civil Action File Number 99-1-7941-24, arising from the Superior Court of Cobb County, GA, and pursuant to O.C.G.A. 5-6-34, petitions this Court for Review of the cited Orders, which are the result of Motions to Dismiss Defendant Parties. Appellant hereby submits her Application for Interlocutory Appeal as a single document, styled in the same manner as the Court's Certificate of Immediate Review, and as advised by Senior Judge Rufe E. McCombs.
Exhibit A, being the Court's Certificate of Immediate Review, shows this Court of Appeals that The Honorable Rufe E. McCombs, Senior Judge, has entered Six (6) Orders in the above matter, or has stated on the Record her intent to enter said Orders. Said Orders are the result of Hearings concluded February 15, 16, and 20, 2001. As of the filing of the instant Application for Interlocutory Appeal, all Six (6) Orders have been filed with the Clerk of the Cobb County Superior Court.
A matter of Declaratory Judgment is rightly heard by either of the higher courts, in that it is not exclusive to either appellate court. Appellant also submits that the Superior Court of Cobb County has granted a Certificate of Immediate Review for the express purpose of appeal to an appellate court. Appellant does not waive any due process rights regarding jurisdiction of subject or person, but further submits that it is the duty of the court to determine adequate and binding jurisdiction. Appellant seeks review of the lower court's jurisdiction.
Rule 30 (a) requires that Application for Interlocutory Appeal meet one of three criteria, and Appellant shows this Court that the instant application meets all three of these criteria.
(i) "The issue to be decided appears to be dispositive of the case." The Honorable Rufe E. McCombs has, through the issuance of her Orders, effectively served summary judgment on Appellant's case, removing each and every defendant for various reasons. However, Appellant shows this Court that more than one genuine issue of material fact remains in dispute and that the Orders were an abuse of discretion. Appellant's procedural and substantive due process rights have been violated through these six orders and through the very process of judge assignment in this case.
(ii) "The order appears erroneous and will probably cause a substantial error at trial or will adversely affect the rights of the appealing party until entry of final judgment in which case the appeal will be expedited." By the issuance of these Six Orders, the Court has barred this Appellant from both legal discovery and legal adjudication on the merits. Appellant shows this high Court that her property rights are thereby left undetermined and potentially jeopardized.
(iii) "The establishment of precedent is desirable." Judge Rufe E. McCombs did qualify her judgment by stating that Plaintiff's claim was "for the Appellate Court to decide." Rather than ruling in substantive form, the trial court effectively forced this litigant to submit an interlocutory appeal. The transcripts of the hearings show that Judge McCombs specifically yielded to an appellate court on issues of fact. Appellant has submitted her Motion for Extension of Time to File Transcripts of Hearings.
Attached as Exhibits B, C, D, E, F, G, and H, pursuant to O.C.G.A. 5-6-34 (b), are:
Order of February 16, 2001, 11:10 a.m. dismissing defendant Jay C. Stephenson
Order of February 20, 2001, 2:10 p.m. dismissing defendant R. Wynette Kennedy Portman
Order of February 20, 2001, 2:11 p.m. dismissing defendant Gregory R. Portman
Order of February 20, 2001, 2:11 p.m. dismissing defendant Larry W. Yarbrough
Order of February 20, 2001, 2:12 p.m. denying Plaintiff's Motion to Disqualify the Honorable Rufe E. McCombs
Order of March 1, 2001, 10:28 a.m. dismissing defendant Judges Kreeger, Bodiford, Ingram, Flournoy, Stoddard and Robinson
Order of March 7, 2001, 11:25 a.m. dismissing defendant Daryl L. Kidd
This is a Civil Action for Declaratory Judgment, pursuant to the Declaratory Judgment Act of 1945, Created by the General Assembly, and pursuant to O.C.G.A. 9-4-3 (CGA Sec. 110-1102). The "purpose and legislative intent of declaratory judgment is to settle and afford a petitioner relief from uncertainty and insecurity with respect to rights, status and other legal relations. The Act is to be liberally construed. (Ga. L. 1945, p. 137, Sec. 13.) Declaratory Judgment is one which simply declares the rights of the parties or expresses the opinion of the Court on a question of law without ordering that anything be done. It does not seek execution or performance from the defendant or opposing party." (Davis and Shulman's Georgia Practice & Procedure, page 777)
Declaratory judgments require that an actual controversy exists. Entitlement to Appellant's property, as claimed by defendant/appellee Daryl L. Kidd through a lien, is an actual controversy which, even after 5 years, has not been settled. Rights and responsibilities of marriage or divorce, as claimed by defendants/appellees Gregory R. Portman and R. Wynette Kennedy Portman through the alleged Final Judgment, is another actual controversy. Responsibilities, duties of the court, and legal issues of the alleged Final Judgment, as claimed by Judge Robert E. Flournoy, Jr. is yet another actual controversy. As a consequence of the alleged Final Judgment, there are now actual controversies as to the responsibilities, duties of the court officers, and legal issues of the subsequent litigation, as claimed by defendants/appellees/Judges Stoddard, Kreeger, Robinson, Ingram, and Bodiford and defendants/appellees Larry W. Yarbrough and Jay C. Stephenson.
Appellant filed her Original Complaint and Suit for Declaratory Judgment, Motion for Change of Venue, Motion for Temporary Restraining Order, Demand for Jury Trial, and Complaint for Plenary Relief, October, 1999. Exhibit I
Appellant filed her First Amendment to Complaint and Suit for Declaratory Judgment, Motion for Change of Venue, Motion for Temporary Restraining Order, Demand for Jury Trial, and Complaint for Plenary Relief, February 5, 2001. Exhibit J
Appellant filed her Second Amendment to Complaint and Suit for Declaratory Judgment, Motion for Change of Venue, Motion for Temporary Restraining Order, Demand for Jury Trial, and Complaint for Plenary Relief, February 20, 2001. Exhibit K
The standard of review on appeal of motions to dismiss is the determining factors from the Record below as to whether or not there exists, beyond a doubt, no set of facts upon which Appellant could prevail. All factual claims of Appellant still exist as no jury has heard them. The standard has not been met.
Judge McCombs was not cognizant of the significant legal differences between VOID and Voidable Orders.
Of special significance is the manner in which the defendant/appellee Judges procured the services of Judge McCombs. Exhibit L The Request for Assistance of a Senior Judge, wherein the five Cobb County Superior Court judges specifically requested by name the Honorable Judge Rufe E. McCombs was at minimum, improper. Such request had the effect of tainting these defendant/appellees as "judge shoppers" and placed the Honorable Rufe E. McCombs in an unfortunate situation that she apparently did not fully comprehend.
However, Judge McCombs should have realized that three of the Judges who had requested her by name were also Defendant Judges in the instant case. Therefore, Judge McCombs should have recused herself at her own discretion. Her failure to make this connection resulted in an abuse of discretion and did not avoid the appearance of impropriety.
Additionally, she failed to consider the mandate of O.C.G.A. 9-12-16 and make a determination as to whether or not the Defendant Judges acted with all appropriate jurisdiction prior to requesting her service, nor did she make a determination as to whether the proceedings of each were proper and in compliance with established court rules.
Even prior to the assignment of the case to Judge McCombs, of special significance is the assignment to, and delay of the case by, Judge Kenneth O. Nix. Exhibit M Although the case was originally assigned to Judge Michael Stoddard, upon his recusal, the case was erroneously assigned to Judge Kenneth O. Nix. Although the assignment of the case should have been according to O.C.G.A. 15-1-9.1 (b)(1)(A), Superior Court Rule 25, and Judicial Qualifications Commission Ruling 220, it remained assigned to Judge Kenneth O. Nix throughout the complete period of legal discovery before he recused himself.
Judges and Attorney Daryl Kidd
Two very important inter-linked queries remain unresolved by the motion hearings as to Appellant's former attorney, Daryl Kidd and Judge Flournoy. Judge Flournoy knew, or reasonably should have known, of the unfortunate former relationship between Appellant and his attorney son, Robert E. Flournoy, III.
The linguistic syntax of the recusal duty required by O.C.G.A. 15-1-8(2) is a requirement to the sitting judge and not a plaintiff or a defendant, O.C.G.A. 15-1-9 notwithstanding. Beyond the duty of the judge, further duty fell to attorney Daryl Kidd, who on the record knew and had an affirmative duty to bring such to the attention of the Court prior to commencement of the divorce trial. His failure to properly perform this duty creates incompetent or inadequate representation of his client. As of this date, Appellant has had no proper jury forum to adjudicate this claim.
As to the other judges of the Superior Court of Cobb County, all have improperly performed ministerial duties in the furtherance of Appellant's deprivations, and their dismissal is therefore unwarranted. Duties ascribed to a judge are his to perform and cannot be indiscriminately set aside or waived by litigant parties.
Mr. Kidd's lien and claim on Appellant's property remains a genuine issue of material fact. Even after he chose to dismiss the foreclosure, Mr. Kidd also chose to waive his subsequent right to reinstate the foreclosure action. Consequently, the controversy of property rights is paramount and unresolved.
Such a dispute is manifestly susceptible of judicial determination. It calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present rights upon established facts. Appellant has clearly and adequately claimed her right to a trial by jury. Consequently, all issues of fact should be presented to the triers.
Appellant respectfully shows this Court that the lower court failed to comply with the standard of O.C.G.A. 9-11-58, which states: "no judgment shall be effective for any purpose until the entry of the same." Since the order of taking jurisdiction was filed after all of the motions had been heard, ruled on, four orders filed, and two orders unfiled, Judge Rufe E. McCombs acted without effective and legal jurisdiction.
Appellant has received no formal legal training, yet had been admonished for presenting her case in substantive form. Appellant has been held to the standard of a trained and experienced attorney, yet officers of the Court have not met that same standard. Appellant seeks this Court's review of a pro se litigant's rights and responsibilities.
Appellant submits to this Court that officers of the Cobb County Superior Court have committed specific acts in violation of the Laws of Georgia and the Uniform Rules of the Superior Court. These acts have resulted in the deprivation of Appellant's due process rights as provided in the U.S. and Georgia Constitutions. Further, Appellant shows this Court that actions of the Superior Court of Cobb County have deprived her of her rights to adequate Discovery pursuant to the Civil Practice Act.
WHEREFORE, Appellant seeks reversal of all Orders to Dismiss defendant parties. Further Appellant seeks remand to the lower court for accurate adherence to the ministerial duties, pursuant to all Law and with specific attention to Appellant's rights to due process and jury trial under the U.S. and Georgia Constitutions. Appellant seeks supervisory control of the actions of the lower court by this Court of Appeals.
Respectfully submitted this 8th day of March, 2001.
Marquitta L. Portman
Appellant, pro se
261 Pioneer Trail
Marietta, GA 30068
770-528-6920 ext. 227